Can cities rebel against provincial law?

The backlash wasn’t long in coming. Less than a day after Quebec’s new religious symbols legislation became law, a motion filed in Superior Court argued that it never should have become law in the first place.

The motion, filed last month on behalf of the National Council of Canadian Muslims and the Canadian Civil Liberties Association, sought to have the law — which bars certain public servants from wearing religious symbols while on the job — stayed while the court hears further arguments. In late July, the Quebec Superior Court rejected the motion to temporarily suspend the law, although the judge acknowledged it raises “serious” constitutional questions.

The motion’s proponents have said they will appeal the ruling. Their legal challenge is the first the law has faced. It almost certainly won’t be the last.

There’s a lot for constitutional scholars to unpack in Bill 21 — its use of the notwithstanding clause to shield it from Charter of Rights challenges, the question of whether it amounts to a provincial government regulating religious practice for a moral purpose — but they’re not the only ones watching. After the bill was tabled, multiple Quebec municipalities condemned it as legalized religious discrimination — and some mused openly about defying the law within their jurisdictions.

Could they? Short answer: no. Municipalities are creatures of provincial governments, and provincial governments determine the limits of their authority. “Their power is created by provincial law and they can’t act legally outside of it,” says Adina-Cristina Georgescu, an administrative and municipal law practitioner in Montreal.

“If provincial legislation applies to them, they are technically supposed to abide by it.”

“If it’s a properly promulgated law, they have no choice but to enforce it,” says Errol Mendes, a constitutional scholar at the University of Ottawa.

The mere fact that we’re talking about the prospect of Canadian municipalities defying a provincial law is remarkable, says Victoria-based Robert Peterson, chair of the CBA’s municipal law section. He says he’s tempted to compare it with the political brawl over the status of ‘sanctuary cities’ in the United States, on a much smaller scale.

“I can’t really think of an analogous situation. This isn’t like a building code,” he says. “And yes, when municipalities decide which laws they want to obey, the system does tend to break down.”

On the other hand, Bill 21 isn’t quite a law like any other. The law is shielded from challenges based on the sections of the Charter of Rights covering fundamental freedoms and legal and equality rights by the province’s invocation of Section 33, the notwithstanding clause. That limits the legal avenues opponents of the law can pursue; at several points in his decision denying the motion for a stay, Superior Court Justice Michel Yergeau said the proponents’ options were severely constrained because they couldn’t base their arguments on the Charter.

Which is why the organizations behind the challenge are relying on a jurisdictional argument: that Quebec is stepping on Ottawa’s authority over criminal law by seeking to regulate religion for a moral purpose. Justice Yergeau said that argument had merit (it will be tested by the courts at a later date) but added that it’s “very rare” for courts to issue injunctions that aren’t based on Charter breaches.

In an op-ed published by the CBA back in April, law student Samer A. Alam and assistant professor Kerri A. Froc of the University of New Brunswick argue that Bill 21 targets religious women — Muslim women, in particular — and therefore violates Section 28 of the Charter, which guarantees that Charter rights apply equally to women and men. Others argue that s. 28 is only an interpretive clause, not a Charter right, so it can’t override the s. 33 notwithstanding clause.

Mendes says there’s a way to attack the law from outside of the Charter — by invoking bedrock constitutional rules that arguably can’t be short-circuited by s. 33.

The 1998 SCC reference decision on Quebec separation invoked “unwritten principles” in Canadian law that fill the gaps in the written Constitution; one of those unwritten principles refers to minority rights. The so-called “Alberta Press” case of 1938 saw the same court shoot down provincial legislation that would have given the Alberta government sweeping powers to censor the media. In 1957, the high court struck down the Padlock Act — an attempt by the Duplessis government in Quebec to suppress communism in the province — in part by concluding that it was an illegitimate constraint on freedom of expression.

All of these decisions, says Mendes, described an “implied” bill of rights — one that predated the Charter by over a century and had guaranteed Canadians political and free expression rights at the time of Confederation. That implied bill of rights — coupled with the vague and confusing wording in Bill 21 — makes the law extremely vulnerable, he says.

“As the law stands, the definition of religious symbolism is almost impossible to imagine being applied in daily life,” he says. “What constitutes a prohibited garment? A woman shows up to work with a scarf wrapped around her head. Is she being religiously observant, or is she having a bad hair day? This law is so badly drafted, it’s close to not being a law at all.”

Vague as it is, the law’s real point of vulnerability might be its inflexibility, says Georgescu — and this is where municipal challenges of the law could find some traction. Over the years, she says, courts in Quebec have pushed municipalities to enforce their bylaws in ways that ensure people who had been targeted for discrimination are treated equitably.

“This law conflicts with that trend, in the specific sections that forbid any sort of accommodation or going-around the rules,” she says.

“If you wear a hijab, you can’t be a cop. No accommodation is permitted. It’s rigid.”

The question for municipalities opposed to the law, she says, is how and when they should intervene. Should they support challenges brought by others — especially individuals arguing personal harm — or should they file their own challenges as soon as they’re able?

“There’s a rule in Quebec that says challenges of provincial laws should come to court within reasonable delays. The standard period is 30 days after the law is adopted, although it’s a grey zone,” she says. “So might municipalities be penalized for launching too soon, or for waiting too long?

“Individuals affected by the law — through being rejected for jobs, for example — have a stronger personal interest. And while it’s wiser to bring an action as soon as possible, it’s not a hard-and-fast statute of limitations. As long as you can justify your delay, the court can be flexible.”